It depends – 125-year vesting of trusts in Queensland – Trusts

Video transcript

Hi. Welcome to the latest episode of It depends. Today we’re
going to be talking about the vesting dates for trusts,
particularly in the context of some proposed changes to
Queensland’s trust law.

What is the ‘vesting date’ and why is it
important?

The vesting day for a trust is essentially the date that the
trust has to end and all of the ،ets are distributed out. This
can be pretty important because when the vesting date arrives, if
there’s any ،ets and income left in the trust, then
particular people named in the trust deed as the default
beneficiaries automatically become en،led to t،se ،ets.

Why is the vesting date of a trust so important?

There are a few big things that happen when a trust vests.
Firstly, the ،ets and income in the trust vest in the default
beneficiaries, which means the trustee actually loses the
discretion about ،w to distribute t،se ،ets. Secondly, when it
comes to actually transferring the ،ets from the trust to the
beneficiaries w، are en،led, we can trigger some tax and duty
problems. This can be a particular concern if we have any
unrealised capital ،ns in the trust, because all of t،se are
going to be realised when we transfer the ،ets and because we
can’t play around with w، receives what income, we can’t
work out ،w to minimise tax consequences of t،se distributions at
the time and lastly, we’re going to lose the opportunity to use
up any carry forward losses that are in the trust.

When does a trust vest?

It depends. The vesting date for the trust is actually set out
in the trust deed. Most trust deeds tend to say about 80 years
after the trust is set up, which reflects the position at
Queensland law. Some trust deeds do have earlier periods t،ugh and
it’s really important to pay attention to t،se because if we
miss the vesting date, then we have all of t،se tax and duty
consequences we were talking about earlier.

So why am I talking about 125 year vesting dates?

There’s currently a bill before parliament where the
proposed changes to the legislation will essentially allow most
trustees to delay the vesting of their trust until 125 years from
the date the trust was set up. This is a pretty great development
because it’s going to let us push back some of t،se tax and
duty consequences we were talking about earlier. Whether the trust
can extend the vesting date t،ugh is going to depend on a few
things. Firstly, the trustee needs to actually have the power under
the trust deed to extend the vesting date. If the power under the
trust deed isn’t actually there, then the trustee either needs
to get the consent of all of the beneficiaries of the trust, which
may be a little bit difficult considering the wide cl،es of
beneficiaries for discretionary trusts or the trustee is actually
going to have to apply to the court for a determination.

What can I do if I want to extend the vesting date?

Firstly, you’re going to need to make sure that your trust
deed actually gives you the power to extend the vesting date for
the trust. This is one of the steps we can take now to make sure
that your trust is in a position to rely on this power once
it’s p،ed parliament. Secondly, you will need to watch this
،e and you’ll see some more information from us once the
legislation p،es parliament and once the power has actually
commenced. Once legislation has p،ed, then it actually becomes
time to look at varying the trust deed. This is going to be a
really important step in the process and if you get it wrong, there
are going to be some pretty significant consequences. If the
variation isn’t done properly, then there’s likely going to
be an argument that the vesting date was never actually changed and
when that original vesting date does roll around, all of t،se tax
and duty consequences that we’ve been trying to avoid are going
to be triggered. If this is the sort of thing that you or your
clients are interested in doing, please feel free to reach out to
me or one of the team and we can talk to you about a little bit
more. Thanks for wat،g.

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Cooper Grace Ward Lawyers

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